When the Supreme Court declared an individual right to gun ownership more than a decade ago, the court’s conservative majority relied on founding-era legal history to invalidate a D.C. law banning firearm possession in the home.
Although some observers say it seems likely that the court took the National Rifle Association-backed lawsuit to overturn a century-old New York state law, which is similar to restrictions in seven other states, there is a surprising split among conservative judges and legal analysts that could influence how broadly the justices rule.
Justice Antonin Scalia’s 2008 decision in District of Columbia v. Heller drew fire from some conservatives who said the court was creating an individual right to gun ownership that it was not clear the Constitution granted. Judge J. Harvie Wilkinson, a Reagan appointee on the U.S. Court of Appeals for the 4th Circuit, fueled the controversy with a law review article calling the Heller majority “guilty of the same sins” as the Supreme Court that found a right to abortion in Roe v. Wade.
Similarly, a conservative judge on the 9th Circuit recently wrote for the court an opinion that upheld Hawaii’s gun restrictions, pointing to “overwhelming” historical evidence that there has never been an “unfettered right” to carry firearms in public. In the New York case, a retired conservative judge joined former officials who served in Republican administrations to write an amicus brief supporting the state, saying the right to carry guns outside the home “has historically been restricted in many public places.”
Two gun owners who are challenging the law and are represented by former solicitor general Paul D. Clement also assert that historical evidence “overwhelmingly confirms” that the Second Amendment protects the right to carry firearms outside the home for self-defense and other lawful purposes.
With both sides claiming a historical upper hand, the case also underscores the limits of relying on the past to review modern laws.
“This is not the kind of case where one side has all the history,” said D.C. lawyer Roman Martinez, who was a law clerk for Chief Justice John G. Roberts Jr. and for Brett M. Kavanaugh before Kavanaugh joined the Supreme Court.
Martinez said he expects that the evidence both sides have marshaled will make the case a challenge to resolve.
“The strength of New York’s historical counterarguments suggests that this case could actually be one that’s a little harder than we might initially guess,” he said during Georgetown University Law School’s preview of the court’s new term, which began in October.
Others cautioned that a majority of the justices may find New York’s law, which requires individuals to obtain a license to be able to carry a gun in public, overly restrictive.
“A discretionary regime where it is virtually impossible or at least extremely difficult to get the state’s or the city’s permission … is unlikely to survive,” Jeffrey B. Wall, a former acting solicitor general during the Trump administration, said during the Georgetown Law preview session.
Test for court's conservatives
The case also presents a test for the court’s conservative majority and its commitment to “originalism,” the method of interpreting the Constitution as it was originally understood.
“Conservatives, textualists and originalists believe — or should — that the Second Amendment ought not be interpreted to take from the people and their legislatures the historical and traditional authority they have had for centuries to decide where guns may be carried in public,” the retired appeals court judge J. Michael Luttig, a nominee of President George H.W. Bush’s, wrote in an email.
“Whatever its policy misgivings and temptation, this conservative Supreme Court would be wise to leave these decisions for the people and their elected representatives to make — as the Framers of our Constitution intended.”
The Supreme Court has turned down numerous requests from gun-rights advocates to get rid of government restrictions on carrying loaded handguns outside the home.
The 5-to-4 decision in Heller made clear that the Second Amendment is not unlimited and does not protect a right to “keep and carry any weapon whatsoever in any matter whatsoever for whatever purpose.” Scalia’s majority opinion identified several lawful restrictions: bans on possession by felons and the mentally ill; bans in “sensitive places” such as schools and government buildings; and regulations on the sale of firearms.
But four justices — Samuel A. Alito Jr., Neil M. Gorsuch, Clarence Thomas and Kavanaugh — have bemoaned in recent orders the high court’s reluctance to jump back into the gun debate. In 2017, Thomas and Gorsuch said the court was treating the Second Amendment as a “disfavored right.”
Roberts has not signed on to such criticism.
Two justices who have joined the bench since Heller was decided are seen as pivotal to the future of New York’s law. As appeals court judges, Kavanaugh and Justice Amy Coney Barrett expressed support in their writings for examining the historical record when assessing the viability of gun restrictions. In each case, however, they were making the argument that the restrictions in question were unconstitutional.
At issue is New York’s requirement that a gun owner obtain a special license to carry by satisfying local authorities that the gun owner has “proper cause” for doing so. Seven other states — California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island have similar laws.
The two people challenging the law — Robert Nash and Brandon Koch — have licenses to carry handguns for hunting and target practice. But New York authorities denied their requests for “unrestricted” licenses for self-defense because officials said they could not show a “special need for self-protection distinguishable from that of the general community.”
During the two-year period of 2018 and 2019, at least 65 percent of applicants in New York were approved for an “unrestricted” license, according to a state analysis of records submitted to the court.
The challengers — joined by the New York State Rifle & Pistol Association, an NRA affiliate — want the justices to overturn a ruling by the U.S. Court of Appeals for the 2nd Circuit saying that the state’s regulations do not violate the Second Amendment and are consistent with the government’s interest in public safety and crime prevention.
At times, the dueling sides examine in their briefs the same founding-era statutes, court rulings and even 14th-century English law. Both quote the Statute of Northampton — the ancient law that prohibited people from traveling armed “by night nor by day” and in places where people were likely to gather such as “fairs” and “markets.”
But they have different interpretations and reach opposite conclusions.
Clement, the lawyer for the gun owners, says there is a broad right to carry in public for self-defense.
“When the founding generation enshrined that right in the Constitution, it understood the right to entitle the people to ‘have arms for their own defence’ and ‘use them for lawful purposes’ wherever the need should ‘occur,’ ” according Clement’s brief.
Founding father Patrick Henry went armed in town on his way to court in early America, the court filing states, and John Adams defended the right to go armed in Boston.
Even those assertions are being disputed by gun-control advocates in a new report titled “Historical Myth-Making and the Second Amendment: Founders and Firearms.”
New York Attorney General Letitia James (D) says that 700 years of history, “from the Middle Ages onward,” including “laws on both sides of the Atlantic broadly restricted the public carrying of firearms and other deadly weapons, particularly in populous places,” and that New York’s law is “less restrictive” than the measures in place before the founding era.
Striking down New York’s law, James said, would jeopardize firearm restrictions that other states and the federal government have in place at courthouses and airports, and in subways, houses of worship, bars and other settings.
New York’s position is backed by more than a dozen professors of English and American history who say limitations on carrying firearms in public are “of ancient vintage.” Saul Cornell, a Fordham University professor, said those challenging the law are wrong on the history. They fail to acknowledge, he said, the “staggering array” of gun laws enacted in the post-Civil War era, including permitting laws and bans on concealed carry.
Barrett and Kavanaugh
The outcome may turn on how Barrett and Kavanaugh view history and the role it should play in a review of gun regulations.
Two years ago, Barrett issued a lengthy dissent in which she argued that only those shown to be dangerous may be stripped of their Second Amendment rights. Even though Barrett would have struck down the ban on all felons owning guns, she emphasized the importance of looking to history as a guide.
The “best historical support for a legislative power” to restrict gun rights would be “founding-era laws explicitly imposing — or explicitly authorizing the legislature to impose” such restrictions, she wrote.
As a judge on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh dissented in a Second Amendment case in which he said the “clear message” from Heller is that the Constitution’s text, history and tradition guide analysis of gun laws and regulations.
Kavanaugh was objecting to a panel decision upholding D.C.’s gun registration requirement and the city’s ban on ownership of semiautomatic rifles.
Rather than a legal test in which courts weigh whether a law is necessary to serve the government’s interest in preventing death and crime, Kavanaugh said, gun regulations should be assessed through the lens of history and tradition.
“Indeed, governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny,” he wrote. “After all, history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right and are consistent with that right, as the Court said in Heller.”
Even before the Supreme Court agreed to take the New York case last April, Judge Jay S. Bybee, a nominee of President George W. Bush’s, wrote the 7-to-4 majority opinion upholding Hawaii’s requirement that residents demonstrate “the urgency or the need” to carry a firearm in public. Bybee delved deep into history.
“We have long distinguished between an individual’s right of defense of his household and his business and his right to carry a weapon in public for his own defense, absent exceptional circumstances,” he wrote in a 127-page ruling.
Bybee acknowledged that “history is messy” and that “the record is not uniform.”
But, he wrote, “the overwhelming evidence from the states’ Constitutions and statutes, the cases, and the commentaries confirms that we have never assumed that individuals have an unfettered right to carry weapons in public spaces. Indeed, we can find no general right to carry arms into the public square for self-defense.”
The case is New York State Rifle & Pistol Association v. Bruen.
Robert Barnes contributed to this report.